For those who don’t know, “Predictive Policing Software” is computer technology which uses advanced mathematics and algorithms to predict the times, locations and “types” of many crimes in any given jurisdiction. Police agencies can use this software to predict property crimes, drug incidents, gang activity, and gun violence, as well as traffic accidents.

The software, by Bair Analytics, will help compile reports currently put together by the department’s current crime analyst, who plans to retire soon.

According to the Bellingham Herald, officers currently use similarly compiled crime information to help detect criminal patterns and choose where they should focus their efforts. For example, if a series of home break-ins has been reported in a specific neighborhood, and officers see that similar methods were used to get into the homes, they start looking at what days and times those crimes happened to try to prevent another or catch the criminal in the act.

“A few years back we had a long series of rooftop burglaries and it took a while to catch the guys that were doing it,” Vander Yacht said. “We had to figure out the best times and places for them to do that.”

The software also allows interested citizens to sign up for alerts and view an interactive map of criminal activity in their area. The information included on the map is somewhat limited to protect the privacy of victims.

The map, which can be found at raidsonline.com, currently shows information for 15 Washington cities, including Seattle, Richland and Pasco. RAIDS stands for Regional Analysis and Information Data Sharing.

My opinion? Interesting technology. I don’t see if it violates people’s Constitutional Rights or infringes on their privacy. There shouldn’t be any problem with the implementation of this technology as long as the information does not target a particular individual.

Still, one gets a sense that Big Brother is getting better at watching us . . .

In State v. Howerton, the WA Court of Appeals held that a citizen informant’s 911 call was reliable enough to support a Terry stop. The citizen informant provided her name, address, and telephone number to the dispatch, included a statement that she had just witnessed the crime, objective facts that indicated criminal rather than legal activity, and an offer to speak with the police if they needed to contact her.

On September 29, 2013, at 2:00 a.m., Laura Parks called 911 from her cell phone to report that she just witnessed someone break into a van parked across the street from her house. She provided her name, address, and telephone number to the dispatcher. Parks described the suspect as a black male, average build, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. She stated he left the area on foot and was heading south on Second Avenue in Burien, Washington.

Police responded to the call and began searching the area for the subject. They contacted a man identified as Delante Howerton matching the description. Howerton was handcuffed. Police noticed a blade sticking out of Howerton’s sleeve. When searched Howerton for weapons, police officers found a foot-long bread knife and a screwdriver on Howerton’s person.

Ms. Parks confirmed that Howerton was the individual she saw break into the van earlier.

Howerton was charged with attempted Theft of a Motor Vehicle, Making or Possessing Vehicle Theft Tools, and Intimidating a Public Servant. The trial court later dismissed the charge of intimidating a public servant. Howerton moved to suppress evidence obtained as a result of the investigatory detention. Specifically, Howerton argued Hutchinson lacked reasonable articulable suspicion to detain him when Hutchinson’s only source of information was from a named but unknown telephone informant. After a CrR 3.5 and CrR 3.6 hearing, the trial court denied Howerton’s motion to suppress.

A jury convicted Howerton of misdemeanor second degree attempted taking of a motor vehicle without permission and making or having vehicle theft tools. He appealed.

The Court of Appeals upheld Howerton’s conviction and ruled his stop/arrest was lawful under Terry v. Ohio. They reasoned that an investigatory Terry stop is permissible ifthe investigating officer has a reasonable and articulable suspicion that the individual is involved in criminal activity. A reasonable suspicion is the substantial possibility that criminal conduct has occurred or is about to occur. A reasonable suspicion can arise from information that is less reliable than that required to establish probable cause.

The Court further reasoned that an informant’s tip can provide police with reasonable suspicion to justify an investigatory Terry stop if the tip possesses sufficient “‘indicia of reliability.'” Courts employ the totality of the circumstances test to determine whether an informant’s tip possessed sufficient indicia of reliability to support reasonable suspicion. When deciding whether this indicia of reliability exists, the courts will generally consider several factors, primarily “(1) whether the informant is reliable, (2) whether the information was obtained in a reliable fashion, and (3) whether the officers can corroborate any details of the informant’s tip.” Known citizen informants are presumptively reliable.

Here, the Court further reasoned that Parks’s 911 call demonstrated a sufficient factual basis to provide reasonable suspicion for the seizure:

Here, Parks unequivocally indicated to the 911 dispatcher that she was an eyewitness. When she called 911, she told the dispatcher, “I just saw a robbery.” She provided her full name, her address, and her telephone number. She indicated that she was willing to speak with police if they needed to contact her. She told the dispatcher the incident occurred “directly across the street” from her house and that it “just now happened.” She stated that an individual “broke into a car.” She said she actually saw him enter the car. She gave a detailed description of the suspect—black male, average build, short hair, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. The dispatcher immediately broadcast this description via radio to officers. Parks stated that the suspect just left the scene heading south on Second Avenue. She also accurately described the street location. Further, Parks reported objective facts that indicated criminal rather than legal activity.

The court further elaborated that Ms. Parks reinforced her factual basis for these allegations by stating that the incident “just now happened” and that the car was directly across the street from her house. Parks reported facts she personally observed. The Court decided the information was reliably obtained and that the police corroborated the information from Ms. Parks’ tip.

Consequently, the totality of the circumstances supported Howerton’s Terry stop. The Court of Appeals upheld his conviction.

Good opinion. In State v. Gunderson, the Court of Appeals decided a trial judge improperly allowed evidence of the defendant’s “prior bad acts” of domestic violence under Evidence Rule (ER) 404(b) at the defendant’s jury trial.

Here, the State charged defendant Daniel Scott Gunderson with Domestic Violence Felony Violation of a Court Order for a September 2010 altercation between himself and Christina Moore, his ex-girlfriend. At trial, Ms. Moore testified that no assault occurred. Although she made no prior statements about the incident, let alone an inconsistent statement, the State sought to introduce evidence of a 911 Call to police and also Gunderson’s prior domestic violence against Ms. Moore to impeach her credibility and show that she was a “recanting” domestic violence victim who was unduly influenced by the defendant. The trial judge admitted this evidence over Gunderson’s ER 404(b) objection. Gunderson argued that the trial court should have excluded evidence of his prior bad acts under ER 404(b).

Some background is necessary. Under ER 404(b), evidence of a defendant’s “Prior Bad Acts” is inadmissible for the purpose of proving a person’s character and showing that the person acted in conformity with that character. The same evidence may, however, be admissible for any other purpose, depending on its relevance and the balancing of its probative value and danger of unfair prejudice.

For evidence of prior bad acts to be admissible, a trial judge must ( 1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Here, the Court of Appeals reasoned that the probative value of the prior DV evidence was outweighed by its significant prejudicial effect. It stated the following:

“Much like in cases involving sexual crimes, courts must be careful and methodical in weighing the probative value against the prejudicial effect of prior acts in domestic violence cases because the risk of unfair prejudice is very high. To guard against this heightened prejudicial effect, we confine the admissibility of prior acts of domestic violence to cases where the State has established their overriding probative value, such as to explain a witness’s otherwise inexplicable recantation or conflicting account of events. Otherwise, the jury may well put too great a weight on a past conviction and use the evidence for an improper purpose.”

The Court of Appeals further reasoned that the trial court’s error was not harmless, and that it is reasonably probable that the admission of the two domestic violence convictions materially affected the outcome of the trial. Consequently, and given the above analysis the Court of Appeals revered the defendant’s conviction and remanded the case to a new trial.

My opinion? This decision was very reasonable, even-handed opinion which was effectively based on the law. The logic makes sense. Because the victim did not make conflicting statements and did not recant and the State did not articulate some other compelling justification, the probative value of this evidence is limited in comparison to its significant prejudicial effect. Not only was it manifestly unreasonable for the trial court to admit this evidence, it was also reasonably probable that the jury would have reached a different outcome. Good opinion.

Excellent Search & Seizure opinion from the WA Court of Appeals. In short, police officers exceed the scope of a Terry stop when an informant’s tip is questionably (un)reliable and the exigency of the alleged serious offense has dissipated. http://www.courts.wa.gov/opinions/pdf/698524.pdf

Police arrived at the home of defendant Andrew Saggers because a 911 call indicated an altercation occurred outside his home involving a shotgun. The 911 call was placed from a payphone. Although the caller provided his name, he was unknown to the police. When police went to the payphone, the caller was gone and the phone was hanging from the cord. The police contacted Mr. Saggers. Although the present situation was neither dangerous nor life-threatening, the police inquired whether Mr. Saggers had a shotgun in the house. He admitted, “Yes.” The police searched his home and found the gun. Mr. Saggers was subsequently charged with Unlawful Possession of a Firearm. At trial, he was found guilty of the charges. The case went up on appeal.

The Court of Appeals held the police officers exceeded the scope of a search under Terry v. Ohio because the informant tip was unreliable and the emergency of any life-threatening situation was already passed. For those who don’t know, Terry v. Ohio 392 U.S. 1 (1968) is a landmark decision by the U.S. Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

Here, however, the Court of Appeals ruled that although it is understandable that officers faced with a 911 call like this one would rightfully pursue an investigation, the 911 Call itself was unreliable. Additionally, the danger had already passed by the time officers arrived at Sagger’s house. Consequently, the officer exceeded the scope of a valid search under Terry v. Ohio. Based on these findings, the Court of Appeals reversed Saggers’ conviction.

Officers received a 911 call about a couple was yelling inside their apartment. Officers drove to the scene. The woman consented to the officer’s request to enter the apartment. Officers found a marijuana pipe. Upon their find, they also conducted a more intrusive – and warrantless – search of the apartment. Methamphetamine was found.

The WA Supremes reasoned the test for an emergency aid exception (also called Exigent Circumstances) entry has been expanded to include the following elements: (1) The police officer subjectively believed that someone likely needed assistance for health or safety concerns; (2) a reasonable person in the same situation would similarly believe that there was need for assistance; (3) there was a reasonable basis to associate the need for assistance with the place being searched; (4) there is an imminent threat of substantial injury to persons or property; (5) state agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons; and (6) the claimed emergency is not a mere pretext for an evidentiary search.

They further reasoned that here, the mere acquiescence to an officer’s entry is not consent to search. It is also not an exception to our state’s constitutional protection of the privacy of the home. Finally, while the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, the warrantless entry in this case was unnecessary. Officers merely heard raised voices from outside the home. The agitated and flustered woman who answered the door indicated that no one else was present in the home. No emergency existed.

My opinion? Good decision. Granting a police officer’s request to enter the home is not, by itself, consent to search the home. Period.

A defendant is entitled to a jury instruction on self-defense in the prosecution for first degree assault after accidentally discharging a firearm when confronted by a neighbor’s pack of dangerous dogs.

“Victim” Daniel Barnes moved to the property next door to to defendant Gary Werner. Almost immediately, Werner and Barnes began an ongoing property dispute concerning a shared easement. Barnes kept seven dogs on Barnes’s property, including a Rottweiler and pit bulls. At least three times before the incident giving rise to criminal charges, the dogs came onto Werner’s property and acted menacingly, barking and circling Werner. Werner started carrying a handgun with him on the property because he was afraid of the dogs.

The property dispute intensified. On the day of the incident, Werner was on his property in the easement area when one of Barnes’s pit bulls approached him, baring its teeth. Werner noticed six other dogs with the pit bull, including the Rottweiler and other pit bulls. The dogs started circling Werner. He pulled out his pistol, thinking he could scare the dogs, and started yelling for Barnes to call off the dogs. Werner panicked and called 911 on his cell phone, but due to his arthritis, the gun went off, discharging into the ground. The police were contacted.

The State charged Werner with Assault First Degree and Malicious Harassment. The jury acquitted him of the Malicious Harassment charge but found him guilty of Assault First Degree. He appealed. The case ended up before the WA Supremes.

The Court reviewed the law on self-defense. “To prove self-defense, there must be evidence that (1) the
defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; [and] (3) the defendant exercised no greater force than was reasonably necessary.” Callahan, 87 Wn. App. at 929 (citation omitted).

The Court reasoned that here, Werner stated that he was afraid. That fear was arguably reasonable, given that he was facing seven snarling dogs, including several pit bulls and a Rottweiler. Pursuant to State v. Hoeldt, 139 Wn. App. 225, 160 P.3d 55 (2007), a pit bull can be a deadly weapon under RCW 9A.04.110(6). There is evidence that Barnes’s friend refused requests to call off the dogs. By that conduct, Werner could reasonably have believed that Barnes’s friend personally posed a threat through the agency of a formidable group of canines that were under his control.

As to the firing of the weapon, the WA Supremes beleived Werner’s accounting that it was an accident. They found sufficient evidence of both accident and self-defense to warrant instructing the jury on self-defense. “Since the outcome turns on which version of events the jury believed, the failure to give a self-defense instruction prejudiced Werner.” Accordingly, the WA Supremes reversed Werner’s conviction.

My opinion? Good decision. A pack of wild dogs surrounding and growling at you definitley warrants self-defense. That’s a no-brainer! The “victim” is lucky none of his dogs were killed.

Defendant Timothy Pugh and his wife Bridgette are married. They had problems. In November 2004, she obtains a no-contact order (NCO) against him. On March 21, 2005, and in violation of the NCO, the Pughs were together at a friend’s apartment. At 3:13 a.m., she calls 911 and states, “My husband was beating me up really bad.” She provided his description. When the operator asked her whether he was still there, Mrs. Pugh said, “He’s just outside.” She again reported being beaten, but this time stated it in the present sense. She also said she needed an ambulance. The call terminated when police officers arrived. Mrs. Pugh had a bruised face and a chipped tooth. The officers soon arrested Mr. Pugh in the parking lot outside the apartment where Bridgette was.

Before trial, the State delivered a subpoena to Mrs. Pugh. However she refused to arrive and/or testify at trial. Despite her decision, and in clear violation of State v. Crawford (2004 case where WA Supremes upheld the Confrontation Clause and dismissed a case where the State’s victim/witness refused to testify) , the trial court admitted her 911 call as evidence. Pugh was convicted of felony violation of the court order, domestic violence.

The WA Supremes held Mrs. Pugh’s statements to the 911 operator were nontestimonial, and therefore admission of a recording of the 911 call at Mr. Pugh’s trial did not violate his right to confrontation under the Sixth Amendment. They reasoned that her statements qualify as res gestae under the res gestae doctrine as it applied at the time the state constitution was adopted. They further argued that statements of this type do not implicate the state confrontation clause. Because the statements are nontestimonial and do not implicate article I, section 22, admission of the 911 recording violated neither the federal nor the state confrontation clause.

My opinion? I hold the same disdain as Justice Sanders’ dissenting opinion. Article I, Section 22 of the WA Constitution states, “In criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face . . .” This is the essence of the Confrontation Clause. And, to quote Justice Sanders, “What is there about face to face that the majority opinion does not understand?” Crawford applies – and cases get dismissed – if a victim refuses to testify. Period. Here, the victim refused to testify. Nevertheless, and in total violation of Crawford, the majority pulls out some archaic res gestae analysis, breathes life into it, and totally stomps the heck out of Crawford.

The writer – who is also a Bellingham police officer – objects to the City’s proposal to lay off police officers in the face of decreased budgets and the economic recession. The article is informative. He discusses increased 911 calls, the “freezing” of more officer positions, understaffing at present levels, the fiscal responsibility of the police department (they cut their own budget by $1M), and the phenomenon of “hit and run law enforcement:”

“If layoffs are to occur, then the Bellingham Police Department will be providing what we in the profession call ‘hit and run law enforcement:’ running from incident to incident without giving each incident the attention it might deserve – going from call to call, always going on to the next crisis before fully solving the one before and not developing relationships with the public, not addressing needs in the community and not protecting the public to the best of our ability simply because we will be doing ‘more with less.'”

My opinion? I’ve got mixed reactions. Yes, we should adequetely fund public safety. Yes, police should be well-trained and reasonably equipped to handle a myriad of situations. Yes, police must have resources to respond – quickly – when contacted for emergencies.

I object, however, when police abuse their authority. I object when police obtain evidence illegally. I object when prosecutors refuse to make reasonable plea offers on weak cases. I object when defendants a grinded through a legal system which unnecessarily costs too much time and money. I really object when defendants are issued bench warrants and/or Bail Jumping charges after failing to appear for their hearings on the aforementioned “weak cases,” which should have never been filed or dismissed long ago.

I propose a two-part solution: First, discontinue funding for the City’s Anti-Crime Team (I blogged about this waaaay back on August 7). The Anti-Crime Team (ACT) is a proactive sub-unit of the Bellingham Police Department. They provide additional investigations/policing of our neighborhoods by serving bench warrants, conducting police interviews, plotting stakeouts, etc. In other words, ACT is proactively involved with community caretaking functions.

I question whether ACT is necessary. Fine lines exists between community caretaking, wasting of resources, and police abuse. Community caretaking wastes resources when police serve bench warrants on low-income defendants accused of low-profile crimes. It also becomes an abuse of power when police conduct unlawful “pretext” investigations (I discuss pretext in my August 7 blog).

Second, save resources by convincing City prosecutors to actively dismiss and/or amend their weaker criminal cases. Everybody benefits! Police won’t needlessly testify at witness interviews, pretrial motions, or trials. We keep them on the streets, where they should be. Also, defendants avoid the grinding, unforgiving process of the criminal justice system.

Bellingham’s finest created a five-person police team dedicated to warrant arrests, stakeouts, sting operations, and plainclothes detective work. The team’s goal is to reduce — and follow up on — the number of 911 calls the police department receives. “Our purpose is basically to do what patrol doesn’t have time to do,” Sgt. Keith Johnson said. “If we can spend some quality time and solve problems rather than deal with them every time they flare up, then the community benefits and patrol benefits.”

The Anti-Crime Team (ACT) appears to be a proactive sub-unit of the Bellingham Police Department. In short, ACT provides additional investigations/policing of our neighborhoods. These activities include serving bench warrants, police interviews, stakeouts, etc. In other words, ACT is involved in community caretaking.

Know this, however: “community caretaking” is, in reality, a legal term; and establishes an exception to rule that officers MUST have a warrant to arrest citizens. ACT’s proactive approach could create a risk of abuse to the community caretaking exception of the warrant requirement. Under WA law, and in light of the risk of abuse, courts must be cautious in applying the community caretaking exception to the warrant requirement. In order to avoid abuse of the exception, community caretaking searches/seizures must be strictly divorced from criminal investigations. Also, the community caretaking function exception may not be used as a pretext for a criminal investigation.

Given ACT’s proactive approach to neighborhood policing as a “community caretaking” function, we could see an increase in unlawful arrests.

The solution? Be aware of your Constitutional rights when approached/questioned by police officers. Be cooperative. Avoid making unnecesssary statements. Ask for an attorney.

According to the article, a recent study showed that 64 percent of the men who called a DV hotline were told that they “only help women,” and only half were referred to programs for male perpetrators. Overall, only 8 percent of the men who called hotlines classified them as “very helpful,” whereas 69 percent found them to be “not at all helpful.” Worse, when an abused man called the police, the police were more likely to arrest him than to arrest his abusive female partner.

My opinion?

I’ve handled hundreds of domestic violence (DV) cases. Truthfully, female-on-male DV doesn’t happen often. Indeed, I can count ON ONE HAND cases I’ve worked where a female defendant abused her male boyfriend/husband. Either it rarely happens, or doesn’t get reported. Probably both.

Still, it’s shameful that female-on-male DV isn’t taken as seriously. Societal norms probably have much to do with it (men are physically stronger, they should have the wherewithall to “handle” an angry/violent female, etc.).

You should know this, however: BY WASHINGTON STATUTE, POLICE MUST ARREST SOMEONE IF THEY ARE SUMMONED VIA 911 PHONE CALL. There’s no getting around it. No arguing with police. They will arrive, separate you two, investigate the scene, gather evidence, interview witnesses, determine who the primary aggressor is, and arrest them.

In addition, a DV perpetrator can be charged with Interfering With a 911 Call – a gross misdemeanor – if the perpetrator attempts to stop the victim from calling the police.